2 Mo. App. 584 | Mo. Ct. App. | 1876
delivered the opinion of the court.
This was a suit originally instituted in the Probate Court of St. Louis county, against the estate of Peter Lindell; deceased, for money loaned to defendants’ intestate, money paid out for him, and article's of jewelry sold to him from time to time, from February 10, 1868, to August 3, 1871, making an aggregate of $7,727.75. . There were no credits.; Judgment was for defendant in the Probate Court. In the Circuit Court a trial was had before a jury, and verdict and judgment for the plaintiff for $7,707.25.
Peter Lindell became of age on October 10, 1870J Defendant, Jamison, was his curator, and supplied him with all necessaries during his minority. Lindell appears to Iiave been a young man of expensive habits, and the evidence for plaintiff is the testimony of the associates of Lin-dell and ministers to his pleasures, and of his servants. It
The court gave the following instruction at the instance-of plaintiff:
“ If the jury believe from the evidence that, on or about. 23rd April, 1872, Patrick B. Ring and Peter Lindell had an accounting and a settlement between them of the money advanced or loaned by Ring to Lindell at sundry times-prior to said date; and that at the said settlement it was. found that said Lindell admitted that he was indebted to-Ring in the aggregate amount of the several sums taken into account in said settlement, as set forth in the settlement thereof filed in the cause, amounting in the aggregate to the sum of $7,727.25 ; and that said Lindell promised to pay said sum to said Ring; and that, at the time of making-said promise, said Lindell was over the age of 21 years, then the jury will find for the plaintiff so much of said
To the giving of this instruction defendants excepted.
The following instruction was given at the instance of defendants:
“ If the jury believe from the evidence that Patrick B. Ring, the plaintiff, owed Peter Lindell at the time of his death, they will find for the defendants.”
And the following instructions were asked by defendants, and refused:
1. “ The acknowledgment of indebtedness by Peter Lin-dell after he became of age, believing himself liable to pay the same, is not a ratification of the account sued upon; and, if the account sued upon accrued whilst Peter Lindell was a minor, under the age of twenty-one years, the jury will find a verdict for defendants.”
2. “If any of the items of the account sued upon accrued more than five years prior to the commencement of this suit, then the plaintiff is not entitled to recover for such items.”
3. “If the curator of Peter Lindell supplied him writh all necessaries while he was a minor, and that the account sued upon accrued while Peter Lindell was a minor, then the plaintiff cannot recover.”
“If the jury believe from the evidence that the curator of Peter Lindell supplied him with all necessaries while he was a minor, and that the plaintiff loaned him money, or sold him diamonds or other property, as mentioned in the account sued upon, while he was a minor, then the said plaintiff cannot recover on the same.”
To the refusal of the court to give any of these instructions defendant duly excepted, and in due time filed his motion for a new trial, which being overruled, the cause is brought before us by appeal.
1. We see no error in the instruction given for plaintiff-
'2. The first instruction refused to defendant was properly refused, because, though it is true that a mere naked acknowledgment of indebtedness would not alone amount to a ratification, the instruction, as worded, was calculated to mislead. It was not necessary, to make the ratification valid; that Lindell should know, at the time of promising to pay the debt contracted when art infant, that he was not legally liable for it. - If he knew all the facts, that is sufficient ; ignorance of the law should not shield an adult ini this .more than jn any. other case.
3. The second instruction was properly refused, because the account was a running account, and would not be barred until the last item was barred. It is true that the account was not mutual, having no credits ; but it seems to be held in Missouri, whatever maybe the rule in some other States, that every new item in- a running account draws after it all preceding items, and is a recognition of the balance when it shall be struck. . ;
• It is true that, in Penn v. Watson, 20 Mo. 16, there were mutual accounts and a set-off; but the question has been! repeatedly brought before our Supreme Court in matters growing out of accounts under the mechanics’ lien law, and the law of boats and vessels, where an entire running account has been brought within the operation of the lien by the! later items.
Stine v. Austin, 9 Mo. 558, was a case in which it was maintained that the plaintiff, a mechanic, was entitled to recover only so much of the account as accrued within six months before filing the lien.- But the court held that, as a
The difference between a running account and- one that does not run is that, in the latter, each item is a separate cause of action in itself. The minds of the parties are presumed to have concurred only as to the single transaction. But, in the case of a running account, according to the doctrine of relation, the subsequent acts relate back each to the preceding act, and all the original acts. The account sued on embraces forty-seven items, running through, and pretty evenly distributed through, about forty months, from February, 1868, to August, 1871. The items seem to have, been jotted down in a memorandum book, carried on his person, by Ring, and, after the last item accrued, were added up by Lindell and Ring together, the amount agreed to, and marked by Ring, in Lindel? s presence, in pencil on the memorandum book or on a card. The account seems to have been kept open at the instance of Lindell. Where it is specially agreed, or impliedly understood, between the parties that the. account is to be -kept open and continued as one and the same continuous transaction and course of dealing, the account is considered, in this State, as one continuous account and one demand.
It may be said that- the Missouri cases in which it has been so held (12 Mo. 477; 16 Mo. 266; 36 Mo. 446; and 40 Mo. 244) were decided in actions based upon a statute which requires that the suit shall be commenced within nine months after the “ true date of the last item in the account upon which the action is founded;” and that-the statute says nothing of the mutuality of the account, and may be said to suppose that the items may be all on one side. The statute as to boats and vessels, it is true, says nothing of the mutuality of the account; but Stine v. Austin, quoted above, was decided under the mechanics’ lien law of 1835, which, like our present statute on the subject, contemplates an account on which all just credits are given.
There can be no question that the weight of authority in other States is in favor of the view that a running account
4. During the progress of the cause defendant’s counsel ¡asked a witness whether he had been arrested for larceny. 'The question ivas excluded. Whether the witness could have been compelled to answer 'the question is a point on which, in the absence of express authority, opinions have been very much divided. The better rule seems to be that the witness cannot be compelled to answer a question the ¡answer to which will tend to degrade him ; though it must be admitted that grave modern authorities point in favor of compelling an answer, which, when given, cannot, however, be contradicted. The matter of compelling an answer must be left, we think, to the sound discretion of the court. But the question here is, may the question be asked? And, if that be decided in the affirmative, the doubt as' to whether it must be answered seems comparatively unimportant, as the object of cross-examining counsel is sufficiently attained by putting such a question, when silence is tantamount to confession, and produces ordinarily the desired effect of
But, if it was error to refuse to allow the question to be-put, under the circumstances of this case, was- this such error as to prejudice defendant, and warrant a reversal of' the case? We do not think.it was. The question was excluded by the court. But it was, in fact, put in the presence of-the jury. The effect, to a considerable extent, must have been produced ; for it is quite evident that a man who had not been arrested for larceny would have answered “no” before an objection could be made; or, if too slow-witted for that, would have asked the court, out of regard to his character, to allow an answer to be made. So far as. this witness is concerned, we cannot see, then, that any mischief was done; and it is not suggested that counsel desired to put similar questions to any other witness, or that they were deterred from doing so by this ruling of the-court.
5. It is also assigned for error that plaintiff was allowed to testify in his own behalf. He was quite competent to testify as to facts occurring since the death of the othei
6. Lastly, it is said that there was no evidence that defendant, William C. Jamison, is administrator of the deceased. Jamison himself was present during the trial. This proceeding is an appeal from the Probate Court, and it appears, that he waived notice of the. demand. There is nothing in. this objection, which is raised here for the first time.
No error appearing in the record which could prejudice-appellant, and warrant a reversal of the judgment of the Circuit Court in this case, it is affirmed.